NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0314n.06 No. 12-3673 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OSEPH C. NI L L ES, Plaintiff-Appellant,

v. GI VAUDA

N FLAVORS CORP ., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) On Appea l from the United States District C o urt for the Southern District of Ohio

Be fore : BO GGS, GI BB ONS, and COOK, Circ uit J udg es. BO GGS, Circuit J udg e. Plaintiff-appe llant J oseph Nilles filed a claim ag ainst his employ er, defe ndant-a

ppellee Givaudan Flavor s Corp. (Givauda n), alleg ing that his termination was the result of disability discrimination, in violation of the A merica ns with Disabiliti es Act (ADA ), 42 U.S.C. § 12112, and Ohio Rev. Code § 4112.02(A). Nilles also alleg ed that his termination co n s t i t uted illega l reta liation, in violation of t he Family Medica l L eave Act (FML A), 29 U.S

. C

. § 2615. The district court g rante d summary judgme nt to Givaudan on all counts, and Nilles now appea ls. For the

rea sons that follow, we a ffirm the de cision of the district cour t. I Givaudan is a manufa cture r of scents and flavors that are used in foods, perf umes, and other consumer products. I n 2003, Givaudan hired Ni l l es as a purcha sing supervisor for its Cincinnati, Oh i o , and East Hanove r, New J erse y , fac iliti es. Givaudan hired J ack Dabne y in mid-2007 as itsNo. 12-3673

Nill es v. G ivaudan Flavors Corp. reg ional purcha s i n g supervisor, a position with supervisory authority over Nilles. I n November 2010, Nilles, who was now r esponsible for pur chasing at Givaudan’s C artha g e, Ohio, and D evon, Kentucky , fac iliti es, told Dabne y that he had rec eived an offe r for another job and used this offe r as lever ag e to neg otiate more favor able ter m s o f employ ment with Givaudan. Givaudan was shortstaffe d and agr eed to g ive Ni l l es an ei ght-perc ent i ncre ase in pay and to hire another employ ee to help with purcha sing at the Devon fac ility

. Soon afte r, Givaudan hired Nanc y Fulmer , who took

over purcha sing at the Devon fac ility

. Both Dabne y and Nilles interviewe d Ful m er , who had extensive experience in the flavor- purcha sing indu s tr y , a n d N il le s h im self rec ommended that Fulmer be hired. After completing her training , Fulmer held the exact position at the Devon fac ility that Nilles held at the Carthag e fac ility , and, while Fulmer repor ted to Nilles for a few months during her training , she eve ntually

repor ted direc tly

to Dabney

. I n 2008, sever al incidents occ urre d that prompted Da bney to talk with Nilles about his job perf ormanc e. I n September 2008, one of Nilles’s subordinates, Kay Whit ener , left Givaudan, stating in her exit interview that she “love[d] Givaudan” but that she had to leave g iven her “ver y difficult manag er/subordinate relationship with J oe Nilles.” Whil e Whit ener mentioned that her new job had

a highe r salary , she made clea r “that money was [not ] the driving forc e in my decision[, and that t] he main driving forc e is J oe Nilles.” Specifica lly , Whit ener com p l ai n ed that “[t] here is no eff ective communication within the very small purcha sing g roup in Carthage” b ecause “[a]s a manag er, [Nil les] is horrible.” I n response to Whit ener ’s comments, Debor ah Pickering (sometimes ref err ed
to as Debor ah Nava

rro in the rec ord) of Givaudan human resour ces sent Dabne y an email sug g esting

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Nill es v. G ivaudan Flavors Corp. that he develop “a plan of action with reg ard to [Nil les] befor e other people exit the company , or the perc eption of y our depa

rtment suffe rs more.” I n his aff idavi t , Da b n ey stated that Nilles had “per formanc e problems” throug hout 2008, noting that Nilles’s “communication and int erpe rsonal ski lls wer e lacking, .

. . [he] h ad p ro b l em s being a self-star

ter[,]

. . . re quiring step-by -step instructions on how to proce ed[, and his] projec t manag ement abilities did not meet my expectations.” Dabne y asser ts that he spoke with Nilles about these issues throug hout 2008, a claim that Nilles does not deny except to point out that these

conver sations did not constit ute forma l discipline. Dabne y also met with Nilles in Fe bruar y 2009
to conduct his annual evaluation, at which time Dabne y discussed all the above- mentioned conce rns that he had a

bout Nilles’s perf

ormanc e. Nilles cla ims that “he did not consider this review as any kind of warning that his perf ormanc e was so poor that his job was in jeopar dy ,” and he point s out that “Givauda

n paid [hi m] a merit-base d bonus for his pe rfor mance in 2008, which rec og nized his achie vement of his annua l objectives.” I n response to these iss ues, Dabney and P icker ing came up with a plan t o terminate Nilles based on his poor perf

ormanc e. Be fore Nilles could be fired, they felt that Givaudan neede d to hire and train a repla ceme nt for Whit ener . Once this objective was met, Dabne y and Pickering planned
to transfe r Fulmer to Nilles’s job and also have her continue with her old duties manag ing the Devon fac ility until a replace ment could be found. Whil e it is unclear exactly when this course of action

was formulated, Dabne y indicated that the orig inal plan had a “tar g et completion timeframe of First Quar ter, 2009,” but that completion was delay ed due to “the longe r than an t i cipated timeframe

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Nill es v. G ivaudan Flavors Corp. require d for rec ruiting the new [ re place ment for] Kay Whit ener .” I n addition, Pickering left 1 Givaudan in 2009 and was repla ced by Wil lie Spencer

. There are no emails in the rec ord betwee n Dabne y and Pickering that descr ibe their plan to terminate Nilles, and the most complete descr iption of the plan is in an Aug ust 5, 2009, email that Dabne y sent to Spenc er catc hing him up on the plan and explaining why it had been delay ed. Spencer asser ts that he had no input in Dabne y ’s decision
t o t er m i n ate Nilles and that afte r Dabne y informed him of the plan to fire Nilles, Spencer ’s on l y involvement was to rec ommend that Dabne y compar e Fulmer and Nilles—in order t o en s u re t hat Fulmer wa s t h e ri g ht person for Nilles’s position—and to provide Dabne y with an HR form for conducting this comparison. Meanw hile, in J uly 2009, another of Nilles’s subordinates, Scott Umphlett, resig ned, stating in his exit interview that while he was leaving beca use h e h ad re ce i v ed a “g reat opportunity and offe r,” Nilles was the rea son he started looking for another job. Umphlett provided a lengthy d es cr i p t i on of his issues with Nilles, repr ising many of the problems Whit ener and Dabne y had alre ady identified. Following Spencer ’s rec ommendatio n , D a b n e y c o mp le ted a formal compar ison of Nilles and Fulmer and conclude d that Nilles should be fired. Dabne y rela y ed this rec ommendation to his boss in Switz erla

nd, J ohannes Roga ar, who approve d it perf unctorily

. On October 20, 2009, Dabne y and Spencer informed Nilles that he was be ing te rminated.

Whit ener ’s repla ceme nt, Nanc y L auer , was hired at the end of May 2009, and Dabne y stated 1 that “we neede d to allow time for her ramp-up” befor e Nilles could be terminated. - 4 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. Throug hout this time period, Nilles had taken FML A leave sever al times. I n J anuar y 2008, Nilles took FML A leave for a respiratory infec tion, and in late Marc h and ear ly April 2009, he ag ain took FML A leave , this time for dizz iness and heada ches. Bo t h of these leave s, along with the pay ment of short-term disability benef its, we re a

pproved unde r the F ML A by Matrix, a contra ctor that administered leave for Givaudan. Fur thermore , afte r eac h leave , Nilles returne d to his previous position with full pay and benefits. Ni l l es l ea rned during his second leave of absenc e that he had Multipl e Sc l er o s i s (M S ) and told Spencer in April 2009. Nilles admits that he told no other employ ee at Givaudan about his MS and does not challeng e Spencer ’s statement that Spencer “did
not tell any

body ” beca

use Nilles “ca

me to me in confide nce . . . [and] asked me to keep it to my self.” During his leave s of absenc e, Nilles told Dabne y only that he was sick, that he was being trea ted by

s ever al doctors, and, at one point, that he was g etting an MRI

. I n addition, o n l y Ni l l es ’s sy mptoms—first an upper respira tory infec tion and later dizzi ness and he adac hes—we re listed on his two requests for

leave , with no mention of his MS

. After his termination, Nilles filed a compl a in t a g a in s t G iva

udan alleg ing, inter alia , disability discrimination, in violation of the ADA a nd Ohio Rev. Code § 4112.02(A), and illega l r etaliation, in violation of the FML A. On Marc h 1, 2012, Givaudan filed a motion for summary judgme nt, and 2
t h e d i s t ri ct co urt g rante d its motion on all of Nilles’s claims. Wit h respe ct to Nilles’s disability

d i s cr i m i n ation claims, the district court held that Nilles had failed to show that Dabne y , the sole

Nilles’s orig inal co m p l ai n t also alleg ed illega l interfe renc e with his FML A rig hts, in 2 violation of t h e FML A, and g ender discrimination, in violation of Title VI I and Ohio Rev. Code § 4112.02(A). On appea l, he does not challeng e the district c ourt’s g rant of summary judgme nt a s to those claims. - 5 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. decision-make r, had any knowledg e of Nilles’s disability and thus that Nilles had not established a prima fac ie case of disability discrimination. Turning to Nilles’s FML A reta liation claim, the district
court held that Nilles had not demonstrated a causa l connec tion betwee n his taking FML A leave and h i s subsequent termination and thus that he had failed to state a prima fac ie case of FML A
reta liation. Therea fter, N illes tim ely appea led. II Summary judgme nt is appropr iate when “the movant shows that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P

. 56(a)

. This court revie ws the g rant of a motion for summary judgme nt de novo. Hi r s ch v. CSX Transp., Inc. , 656 F.3d 359, 362 (6t h C i r. 2 0 1 1 ). We must construe all evidenc e and draw all infere nces ag ainst the moving party

. Martin v. Cincinnati Gas & Elec. Co. , 561 F.3d 439, 443 (6th Cir. 2009). Howeve r, “‘[t] he mere exis tence of a scintilla of evidenc e in support of [t he non-moving party ’s] position will be insufficient; there must be evidenc e on which the jury could rea sonably find for the [non-moving party ].’” Shropshire v. Laidlaw Transit , Inc. , 550 F.3d 570, 576 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986))

. I n this analy sis, “the judge ’s function is not himself to weig h the evidenc e and deter mine the truth of the matter but to deter mine whether there is a g enuine issue f or trial.” Anderson , 477 U.S. at 249.

III A Title I of the ADA prohibits employ ers from “discriminat[ing] ag ainst a qualified individual

on the basis of disability in reg ard to

. . . discharg e of employ ees.” 42 U.S.C. § 12112(a)

. To make - 6 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. out a prima fac ie case of disability discrimination under Title I throug h the use of indirect evidenc e, a plaintiff must show: 1) he or she is disabled; 2) otherwise qualified for t h e p o s i t ion, with or without rea sonable acco m m odation; 3) suffe red an adver se employ ment decision; 4) the employ er knew or had rea son to know of the plaintiff’s disability ; and 5) the position rema ined open while the employ er soug ht other applicants or the disabled individual was re place d. W hitfield v. Tennessee , 639 F.3d 253, 259 ( 6th Cir. 2011) (interna l quota tion mar ks omitted). I f a pl ai n t i ff meets these require ments, “the burden shifts to the defe ndant to articulate a non-discriminatory explanation for the employ ment action, and if the defe ndant does so, the burden shifts back to the plaintiff to prove that the def endant' s expl anation is prete x tual.” Ibid

. I n addition, “ana ly sis of claims made pursuant to the Americ ans with Disabilities Act applies
to claims made pursuant to O hio Re vised Code § 4112.02.” Jakubowski v. Christ Hosp., Inc. , 627 F.3d 195, 201 (6th Cir. 2010). Acc ording ly , disability claims broug ht under Ohio law m ay be evaluated conc urre ntly

and under

the same standa

rds as c laims broug ht under the A DA. B I n the instant case , the district court found, and no party disputes, that the only element at issue in N illes’s attempt to establish a prima fac ie case is whether Givaudan knew or had rea son to know of Nilles’s disability

. Whil e Nilles argues that “the knowledg e require ment is met if the leg al entity

was on notice” of his disability , see Appellant Br

. at 11, exis ting case law m akes clea r that an employ ee c annot be c onsidered to have bee n fired “ on the basis of disability ” unless the individual decisi o n -m ak er wh o fired the individual had knowledg e of that disability , see Burns v. City of Columbus, Dep’ t of Pub. Safety, Div. of Police , 91 F.3 d 836, 844 (6th Cir. 1996) (holding that - 7 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. plaintiff could not establish a prima facie case of disability discrimination beca

use he had failed to show that the members of a revie w board that made the ultimate de cision to terminate him knew of his disability ); Landefeld v. Marion Gen. Hosp., Inc. , 99 4 F. 2 d 1178, 1181–82 (6th Cir. 1993) (holding that beca

use “it was the Boa

rd of Direc tors, and not the president, who suspended plaintiff,” plaintiff could not state a claim of disability discrimination wher e “[t] her e is no showing that the Boa rd had any knowledg e of plaintiff’s mental illness”); Moloney v. Home Depot U.S.A., Inc. , 2013 WL 460684, No. 11-10924, at *1 (E.D. Mich. Fe b. 7, 2013) (“[B]eca use Keith Stevens made the decision to te rminate Plaintiff’s employ ment, . .

. it is Stevens’s knowledg e, as the decision-make r, that is rele vant.”) ; see also Cordoba v. Dillard’s, Inc. , 419 F.3d 1169, 1185 (11th Cir. 2005) (“O nce the issue is fra

med cl ea rl y , it is evident that an employ ee cannot be fired ‘bec ause of’ a disability unless the decisionmake r has actua l knowledg e of the disability .”); Hedbe rg v. Ind. Bell Tel. Co., Inc. , 47 F.3d 928, 932–33 (7th Cir. 1995) (holding that lack of knowledg e of decision-make r is fata l to a prima facie case under the AD A bec ause “ it is intuiti vely clea r when viewing the ADA’s lang uag e in a straig htforwa

rd manner that an employ er cannot fire an employ ee ‘bec ause of’ a disability unless it knows of the disability ”). On this fa ctor, Nilles has clea rly failed to c arr

y his bur den of showing 3 that Dabne y , the sole dec ision-maker w ith respec t to Nilles’s firing , knew of his disabilit y .

Whil e the ADA Amendments Act of 2008, Pub. L

. No. 110-325, 122 Stat. 3553 (codifie d 3 as amended i n scatter ed section s o f 42 U.S.C.), chang ed the lang uag e of the Act from prohibit ing discri mination “bec ause of” disability to discrimination “on the basis of” disability , this does not aff ect the rea soning of the pre- 2008 decisio n s wi t h respect to decision-make r knowledg e. I t is equally true that an employ ee cannot be fi red “on the basis of” his disability unless the i ndividual firing him knows of that disability

. - 8 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. Nilles does not contest that Dabne y was the sole decision-make r for his termination and admits that he told no one at Givaudan about his MS except Spencer

. Fur thermore , Spencer specific ally stated in his aff idavit that, at Nilles’s reque st, he told no one else at Givaudan about Nilles’s disability

. Nilles p r e s ents no evidenc e to ref ute Spencer ’s statement or otherwise sug g est that Dabne y knew of his MS. I nstead, Nilles argues only that a jury must be allowed “to evaluate whether Spencer ’s knowledg e should be imputed to J ack Dabne y .” Appellant Br

. at 12. “The mere exis tence of a sc intill a of evidence in support of [ Nilles’s] position [i s] insufficient’” to allow us to drawthe specula tive infere nce that Spencer lied in his aff idav i t an d i n fac t did rela y Nilles’s medical info rm ation to Dabne y . Shropshire , 550 F.3d at 576 (quoting Anderson , 477 U.S. at 252). Her e, Nilles has produce d even less t h an a s ci ntilla of evidenc e and simply asks the court to disbelieve Givaudan’ s aff

idavits. This is untenable. See Brown v. City of Franklin , 430 F. App’x 382, 386 (6th Cir. 2011) (“[Plaintiff] contests [t he fac t that defe ndant knew plaintiff eng ag ed in a protec ted activity ] simply by contending that human re source s ‘must have told’ [defenda nt] of [pl aintiff’s] statements [m ade in HR interviews]. This, howeve r, is pure specula tion, and [pl aintiff] conce ded that he has no evidenc e to undermine [defendant’ s] claim of ign o ra n ce . ”); Burns , 91 F.3d at 844 (holding that plaintiff had not established employ er’ s knowledg e of his disability beca use he “fa iled to prese nt any evidenc e to contra dict the aff i d av i t testimony of the

. . . Boa rd members who claim to have been

unawa re of [pl aintiff’s] injury

when they

made their

decision to rec ommend his termination”). I n addition, Nilles asks us to assume that Spencer ’s knowledg e can be imputed to Dabne y beca use “Spence r advised Dabne y reg arding the consolidation of the purcha sing manag er positions.” Appellant B r. at 12. The rec ord contains no evidenc e, howeve r, to dispute Spenc er’ s assertion that - 9 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. he only spoke with Dabne y

about the process for f

iring Nilles, as was his job as a human resour ces employ ee, and never made any rec ommendations on the substance behind Nilles’s termination. Ag ain, without any evidenc e to sug g est that Spencer play ed a substantive role in Nilles’s firing , Nilles
cannot a sk us to speculate that such conduc t occur red. Finally , Nilles arg

ues that Dabne y knew that Nilles was disabled beca use, g iven Nilles’s two leave s of absenc e, Dab n ey k n ew that Nilles was sick. Knowledg e of an employ ee’ s sy mptoms, howeve r, does not nece ssarily equate to knowledg e of his disability

. See Hammon v. DHL Airways, In c. , 165 F.3d 441, 450 (6th Cir. 1999) (holding that employ er had no knowledg e of plai n t i ff ’s disability mere ly beca

use employ er knew of several o f h i s s y mptoms); Brown v. BKW Drywall Supply, Inc. , 305 F. Supp. 2d 814, 8 2 9 (S

. D. Oh i o 2004) (“K nowing that an employ ee has health problems, howev er, is not the same as knowing that the employ ee suffe rs from a disability .”). Of

course , if Nilles’s sy

mptoms wer e sever e enou g h to aler t Dabne y that Nilles had a disabling condition,

one might be able to conclude that Dabne y knew of Nilles’s disability or at least had some g ener alized notion that it exis ted. But in the instant case , Dabne y only knew that Nilles had taken two leave s of absenc e, eac h for less than a month and separ ated by over a y ear , and that Nilles was seeing sever al doctors and had had an MRI

. This information does not strong ly imply that Nilles had a perma nent disability and is just as, if not mor e, consistent with the perc eption that Nilles simply was suffe ring from one or

more tempora

ry illnesses. Acc ording ly , the district court corr ectly held that Nilles failed to establish a prima fac ie case of disability discrimination under either the ADA or Ohio law and appropr iately g rante d Givaudan’ s motion for summary

judgme nt on those claims. - 10 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. IV A The FML A prohibits an employ er fr o m “ d is c h a r g [i n g ] o r in any other manner discriminat[i ng ] ag ainst any individual for opposing any prac tice made unlawful by this subchapte r.” 2 9 U. S

. C. § 2615(a) (2). This lang uag e has been rea d as cre ating a cause of action ag ainst employ ers who
reta liate ag ainst employ ees for taking FML A leave

. See Donald v. Sybra, Inc. , 667 F.3d 757, 761 (6th Cir. 2012). I n order

to establish an FML

A re taliation claim, a plaintiff must demonstrate : (1) she was eng ag ed in an activity protec ted by the FML A; (2) the employ er knew that she was exe rc i s i n g her rights under t he FML A; (3) after learning of t he employ ee’ s exercise of FML A rig hts, the employ er took an employ ment action adver se to her; and (4) there wa s a causa l connec tion betwee n the protec ted FML A activity and the adver se employ

ment action. Kill ian v. Y

o r o z u A u t o . T

en n . , Inc. , 454 F.3d 549, 556 (6th Cir. 2006). I f a plaintiff satisfies this framework, “[t] he burden then shifts to [t he defe ndant] to articula te a leg itimate, nondiscriminatory

rea son for [pl aintiff’s] discharg e.” Skrjanc v. Great Lakes Power Serv. Co. , 272 F.3d 309, 315 (6th Cir. 2001). I f the defe ndant is able to articu late such a rea son, the plaintiff “has the burden of showing that the ar

ticulated re ason is in rea lity a pre text to mask discrimination.” Ibid

. B I n g ranting summary judgme nt for Givaudan on this claim, the district court held that Nilles had not demonstrated a causa l connec tion betwee n his taking of FML A leave and his eventua l firing

. The district court rea soned that Dabne y ’s plan to terminate Nilles, which was formulated well befor e Nilles’s final taking of FML A leave in 2009, demonstrated that the 2009 FML A leave itself was not the re ason for

Nilles’s firing . I n addition, the district court noted that, even a ssuming ther e wa s no - 11 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. plan t o fire N illes prior to his 2009 FML A leave , Nilles’s only other e vidence of ca

usation was the temporal proxi mity betwee n his 2009 FML A leave and his e ventual firing

. Observing that Nilles’s last period of FML A leave ended in April 2009 and that he was not fired until October 20, 2009, the district court stated that Nilles’s termination “over six m o n t h s af t er his last FML A leave ” was insufficient tempora l prox imity to establish causation. We ag ree that if, as t he district court found, Dabne y had formulated a plan with Pickering

some time in late 2008 or ear ly 2009 to fire Nilles, this plan would have exis ted well befor e Nilles’s second, 2009 FML A leave and thus would discredit Nilles’s claim that his termination was motivated by that leave

. Wit h respe ct to his ear lier FML A leave , taken in J anuar y 2008, while neither the parties

nor the district court discussed the issue at l ength, it seems clea r that this leave , taken more than a y ear and a ha lf befor e Nilles’s ultimate termination and almost a y ear befor e Dabne y claims he and Pickering first formed their plan to fire Nilles, has an even weaker causa l connec tion to Nilles’s losing his job. In sum, Nilles’s entire FML A claim can quickly be disposed of if we cre dit Dabne y ’s story that he and Picke ring hatche d their plan to fire Nilles befor e he took his F ML A leave

. On appea l, N illes a

rg ues, as he did be fore the district c ourt, that “ther e is no documentation of [Dabney ’s plan to terminate Nilles] in this rec ord except [hi s] Aug ust 2009 email [t o Spencer ].” Appellant Br

. at 16. Thus, Nilles asser ts that there is a g enuine issue of fac t as to whether Dabne y ’s plan actua lly exis ted, as “it could be that Nilles’ perf ormanc e improved such that termination was no longe r war

rante d[] or i t co u l d b e t h at the plan never exis ted in the first place .” Id

. at 16–17. I n addition, the district court noted that Pickering ’s mention in an email of the need to form “a plan of action with reg ard to J oe” corr oborate d Dabne y ’s story that he had develope d a p l an to fire Nilles - 12 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. befor e he took his 2009 FML A leave

. Nilles claims that this was “an infere nce in favor of the moving party , which is improper at summary judgme nt.” Id . at 16. All of these arguments fail for the same rea son that Nilles’s arguments conce rning Dabne y ’s knowledg e of his disability fail. See supra Section I I I .B. Nilles fundamenta lly misunderstands the

s u mm a r y - ju d g me nt maxi m that “all infere nces are to be draw n in the non-movant’s favor ,” essentially arguing that we must acc ept any remotely possible hy pothetical that would further his cause and must disbelieve any statement from Givaudan that would hurt it. This is not the case . See Matsushita Elec. Indus. Co., Ltd. v. Zenith R a dio Corp. , 475 U.S. 574, 586 (1986) (making clea r that the party opposing summary judgme nt must “do more than simply show that there is some metaphy sical doubt

as to the materia l fac ts”); Alexande r v. CareSource , 576 F.3d 551, 558 (6th Cir. 2009) (“[T]he party

o p posing [a motion for summary judgme nt] may not rely on the hope that the trier of fa ct wi l l disbelieve the movant’s denial of a disputed fac t but must make an aff irmative showing with proper evidenc e in order to defe at the motion.” (interna l quotation marks omitted)); Hedbe rg , 47 F.3d at 932 (“Spec ulation does not cre ate a genuine issue of fac t; instead, it cre ates a false issue, the demolition of which is a primary g oal of summary judgme nt.”); see also Brown , 430 F. App’x at 386; Burns , 91 F.3d at 844. Simpl y invoking the possibili ty that Dabne y manufa cture d an elabor ate story reg arding

a plan to fire Nilles and speculating that Dabne y went so far as to fabr icate his Aug ust 2009 email to Spencer in order to corr oborate that story is not enoug h to cre ate a g enuine dispute of materia l fac t. And the district court’s observation that Pickering ’s email s upported Dabne y ’s story was a proper finding that Givaudan had prese nted a plausible rendition of the fac ts, one that Nilles had utterly failed to discr edit. - 13 -No. 12-3673

Nill es v. G ivaudan Flavors Corp. Acc ording ly , Nilles could not establish that his termination was causa lly rela ted to his taking of F ML A leave , and he thus fa iled to state a prima f acie case of F ML A re taliation. V For the fore g oing rea sons, we AFF I RM the district court’s order g ranting summary judgme nt to Givaudan.

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